United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P CAGE (Counsel) Messrs Mark Gilbert Morse Solicitors Greys Building 53 Grey Street Newcastle-upon-Tyne NE1 6EE


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law raised in a Notice of Appeal against the Tribunal's decision.

In this case the decision of the Industrial Tribunal was that the Applicant, Mr P Malone, had been unfairly dismissed by his employers, Tyne Tube Services Ltd, the Respondents to the Originating Application. They awarded Mr Malone the maximum compensation of £11,300 plus £630.00 basic award. The decision was signed by the Chairman on 4 November 1996 and was sent to the parties on 7 November 1996. The decision describes itself as being a decision with summary reasons.

On 29 November, that is out of time, the company applied for Extended Reasons through their solicitors, who had been representing them at the hearing on 7 October 1996. In their letter requesting Extended Reasons there was no complaint about the way the Industrial Tribunal had dealt with the issues before them, although it was indicated that the employers were going to appeal the decision. The application for Extended Reasons was refused on the grounds that the application had been made out of time.

The Employment Appeal Tribunal's rules require that the appeal should be lodged against a decision which has Extended Reasons. Rule 3(1) provides:

"Every appeal to the Appeal Tribunal shall be instituted by serving on the Tribunal the following documents:__

(a) a notice of appeal in, or substantially in, accordance with Form 2 or 2 in the Schedule to these Rules;

(b) a copy of the decision or order of an industrial tribunal or of the Certification Officer which is the subject of the appeal;

(c) in the case of an appeal from an industrial tribunal, a copy of the extended written reasons for the decision or order of that tribunal."

By a Practice Direction issued by this Employment Appeal Tribunal on 22 March 1996, it is provided in paragraph 2(2):

"Where a request for extended written reasons has been refused by the Industrial Tribunal an appellant may appeal against that refusal and may also apply to the Employment Appeal Tribunal to exercise its discretion to hear the appeal on summary reasons only."

Rule 39 of The Employment Appeal Tribunal Rules gives the Employment Appeal Tribunal the discretion to consider an appeal in summary reason form only, where it considers that it should do so.

The issue in this case before the Industrial Tribunal was on liability, and was whether the employee had terminated his own employment or whether his employment had been brought to an end by his employers. It is one of those cases where the employee had expressed dissatisfaction with his lot to a working colleague. He had then absented himself from work for a period of two days whilst he decided what he should do and he then sought to return to work.

The Industrial Tribunal concluded in their summary reasons at paragraph 3 that:

"...Having heard the evidence it was the Tribunal's unanimous conclusion that the words spoken by the applicant to his fellow employees on Wednesday 3 April 1996 could not be construed as his resignation as the words were not spoken to a senior member of management and in consequence could not be regarded as words spoken to the respondent indicating the applicant's intention to withdraw from his contract with the respondent."

Having ruled on liability in favour of the employee, the Tribunal went on to consider the

question of compensation. In paragraph 4 of their decision they say this:

"So far as compensation is concerned having heard the applicant's evidence as to the efforts which he had made to obtain alternative employment and bearing in mind the fact that he was approaching his 62nd birthday the Tribunal were unanimous in their view that there was little prospect of the applicant obtaining alternative employment before the normal retiring age of 65 and on that basis the Tribunal were unanimous in their view that they should take the unusual course of awarding compensation for future loss of earnings up to the date of the applicant's 65th birthday. So far as compensation is concerned the calculations are as follows:"...

They then set out those calculations. They show that a total compensatory award of £66,700

would have been appropriate, but as there is a statutory cap on the amount of compensation, they reduced that element of the award to £11,300, being the maximum that fell within their power.

The employers put forward a Skeleton Argument through their Counsel, which seeks to criticise the Industrial Tribunal's decision in summary form. It is also to be noted that the employers became aware through their solicitors of our Practice Direction and have asked us to exercise our discretion to allow this appeal to go ahead, despite the fact that there are only summary reasons. It is to be pointed out that there is no appeal before us against the refusal of the Industrial Tribunal to provide Extended Reasons. It is realistically accepted by Counsel that as that application was made out of time to the Industrial Tribunal, bearing in mind that the employers have had the benefit throughout of legal advice, it was most unlikely that any such appeal would stand any reasonable prospect of success.

Nonetheless, in an attractive argument presented to us, Counsel has sought to persuade us that we should allow this appeal to go ahead for a full hearing. His first point was as follows: that the usual practice of the Industrial Tribunal (sitting at Newcastle-upon-Tyne) was to hear evidence and submissions relating to liability in the first instance, and thereafter, after the decision on liability, to receive evidence and submissions in relation to compensation. As a result, the employers did not adduce any evidence as to the compensation issue. It is said before us that they had available to them at the Tribunal, evidence from a Director of the employing company, who would have been able to give evidence that shortly after what was found to have been his dismissal, the employee's job might, in any event, have become redundant through successive redundancy exercises which reduced the workforce at the company from 50 to about 20 people.

It is not suggested, and could not have been suggested, that the Tribunal had said anything at the hearing to mislead the employer's legal representative. Indeed, we think it must have been quite obvious to that representative that the Industrial Tribunal was concerning itself with the question of remedy. We say that on the basis of what is set out in paragraph 4 of the decision to which we have referred. The Tribunal not only heard evidence from the employee as to the amount of his earnings, but they had also heard evidence as to the attempts which he had made to obtain alternative employment.

It must have been obvious, in our judgment, to the employee's representative, that at the very least there was a possibility that the Industrial Tribunal was intending to deal with compensation at that hearing. It seems to us that the employer's representative could and should have enquired of the Industrial Tribunal as to the purpose for which they were receiving this evidence and satisfied himself that the Tribunal were proceeding in a way which he [the solicitor] thought they normally had adopted. Furthermore, when the Tribunal announced their decision, we would have expected the solicitor's immediately to have said "We were not expecting you to be dealing with compensation, we only thought you were concerned with liability. We have relevant evidence which we would have called had we known what you were considering" or words to that effect. That did not happen.

In the letter of 29 November there was no suggestion made by the solicitors to the Industrial Tribunal that in some way they had misled themselves into believing that the issue was only concerned with liability, and that an injustice had been done to the clients through their belief and through the fact that they had withheld evidence which otherwise could pertinently have been given. It seems to us that where a party is represented by a lawyer, the Tribunal is entitled to assume that the matters which are under investigation are being properly dealt with by that legal representative. If at the hearing or immediately thereafter, the employers believed that they had evidence to give but had been misled about its relevance, we find it incredible that no comment to that effect was immediately made to the Industrial Tribunal, inviting them to put right what was and must have been seen to have been a procedural mishap.

In any event, it is not at all clear whether the evidence which the employers say that they would have adduced, would have made any difference to the result of this case. For our part we are not at all persuaded that this is a case where it would be proper to exercise our discretion to allow the appeal to take place against the summary reasons of the Industrial Tribunal. The rules are clear. When sent the decision, parties are informed of their rights as to a review and as to the lodging of an appeal, and in any event the employers were represented by experienced solicitors. It seems to us in those circumstances that if a procedural mishap had occurred, the correct and proper course would have been immediately to have asked the Tribunal to review its decision. This was not done. Instead, out of time, a letter was written asking for Extended Reasons, and it seems to us, that accordingly, we should simply say that this appeal raises no arguable point of law and must be dismissed.